Olawale v Refugee Applications Commissioner & Minister for Justice
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE T.C. SMYTH |
| Judgment Date | 03 October 2002 |
| Neutral Citation | [2002] IEHC 152 |
| Court | High Court |
| Date | 03 October 2002 |
[2002] IEHC 152
THE HIGH COURT
Citations:
REFUGEE ACT 1996 S13(1)
PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS (UN HIGH COMMISSION HANDBOOK)
REFUGEE ACT 1996 S11(2)
REFUGEE ACT 1996 S13(1)
TEN V MIN JUSTICE UNREP HIGH 31.10.2001
FLANAGAN V UCD 1988 IR 724
B-M (A) V MIN JUSTICE UNREP O'DONOVAN 23.7.2001 2001/1/267
UNITED NATIONS CONVENTION ON THE STATUS OF REFUGEES 1951 ART 1(A)(2)
KARANAKARAN V SECRETARY OF STATE FOR THE HOME DEPARTMENT 2000 3 AER 449
R V SECRETARY OF STATE FOR THE HOME DEPARTMENT EX-PARTE SIVAKUMARAN 1988 2 AER 193
REFUGEE ACT 1996 S2
Z V MIN JUSTICE 2002 2 ILRM 215
CAMARA V MIN JUSTICE UNREP KELLY 26.7.2001 2000/4/1247
SIVANENTHERAN V IMMIGRATION APPEAL TRIBUNAL 1997 IMM AR 504
ZGNATEV V MIN FOR JUSTICE UNREP FINNEGAN 29.3.2001
HORVATH V SECRETARY OF STATE FOR THE HOME DEPARTMENT 2000 WLR 379 2000 3 AER 577 2000 INLR 15
KIRWAN V MIN JUSTICE & ORS 1994 1 ILRM 444
TRIAL OF LUNATICS ACT 1883
CONSTITUTION ART 38.1
CONSTITUTION ART 40
REFUGEE ACT 1996 S5
UNITED NATIONS CONVENTION ON THE STATUS OF REFUGEES 1951 ART 33
CIE V BORD PLEANALA UNREP CARROLL 22.2.1984 1984/4/1059
HOLLAND, STATE V KENNEDY 1997 IR 193
Synopsis:
IMMIGRATION
Asylum
Judicial review - Refugee status - Grounds upon judicial review sought - Refugee Act, 1996, ss. 11(2), 13(1) (795JR/2001 - Smyth J - 3/10/02)
Olawale v Office of the Refugee Applications Commissioner
Facts: The applicant was a Nigerian national who claimed asylum in Ireland. It was concluded that the applicant did not qualify for refugee status The applicant sought judicial review of the decision on the grounds that the respondents had (a) acted ultra vires the Refugee Act, 1996 and in breach of the principle nemo iudex in causa sua; (b) failed to consider persecution by reason of religion; (c) wrongfully relied on the UNHCR handbook; (d) wrongfully took into consideration that the applicant’s wife had not applied for refugee status; (e) wrongfully relied on an assertion that the applicant was required to avail of ‘internal relocation’; (f) the applicant was not provided with legal representation or an interpreter; (g) the respondents failed to form any opinion on the threat to the life and liberty of the applicant should he be deported.
Held by Smyth J. in declining to grant leave to apply for judicial review and dealing with applicant’s grounds in order (a) The Refugee Act, 1996 gave the power which was challenged. (b) There was evidence before the court upon which the view formed by the respondents could have been arrived at. (c) The guidelines contained in the Handbook were of relevance to the adjudicator (d) This clearly was not established by the evidence or any reasonable view of the evidence. (e) The Convention treats a country as a single entity and the adjudicator was fully entitled to come to the view that he did. (f) The applicant was advised as to his entitlements which he exercised as he saw fit (g) The obligation to consider this threat only arises after a decision has been taken to remove the applicant because it depends on the stability and security of the state which may fluctuate. Finally, a factual error in the documentation was not of a character which vitiated in any way the decision made.
MR. JUSTICE T.C. SMYTH DELIVERED ON THURSDAY, THE 3RD DAY OF OCTOBER 2002
I hereby certify the following to be a true and accurate transcript of my shorthand notes in the above judgment.
APPEARANCES
For the Applicant:
MR. McMORROW BL
For the Respondent:
MS. BRETT BL
| MR. JUSTICE SMYTH: | The Applicant is a Nigerian national. He is |
a married man with a family. His family, in September 2001 (when he was interviewed), were living in Nigeria, but he was not sure of their exact location. He is originally from Lagos, but lived in Koligako in Kaduna State from 1984 to 2000. He is a Christian, a member of the Yoruba tribe and a printer by trade, although he spent some time working as a civil servant (having worked in the Ministry for Works and Housing); he has also a Masters Degree in Fine Arts from Lagos University.
At the Applicant's time of arrival at Rosslare on 26th/27th September 2000, when he made a claim for asylum, he submitted a false United Kingdom passport. He claimed he left Nigeria on 24th September 2000, after spending some two weeks with his parents in Lagos, and having left Nigeria he travelled to Ireland via Ghana and France -- in neither would he appear to have claimed asylum.
Subsequent to completion of a questionnaire and the interview held on 3rd September 2001, a report of an authorised officer, one Kevin Duffy, was prepared. Subsequently, Mr. Duffy prepared a report of the results of his investigation and recommendations of the Refugee Applications Commissioner pursuant to Section 13(1) of the Refugee Act 1996as amended (hereinafter referred to as the “Act of 1996”). The conclusion reached on a consideration of the facts, country of origin information and the UNHCR Handbook was that the Applicant had not established a case as to qualify him for refugee status. The Applicant was advised of this decision by way of recommendation by letter dated 14th November 2001. The Applicant did not appeal that decision within the time specified (and insofar as the papers reveal, not at all). Proceedings were issued on 26 th November 2001.
The grounds upon which judicial review are sought are as follows:-
"A. The First-Named Respondent, servant or agent, interviewed the Applicant, considered the information and documentation in relation to the application for a declaration of refugee status, made findings in respect of the application, examined the Applicant's claim, made a report of the results of the investigation and recommendation, and proceeded to make a submission that the Applicant had not established a case such as to qualify him for refugee status and that a recommendation be forwarded to the Minister for Justice, Equality and Law Reform refusing to declare his refugee status; ultra vires the Refugee Act 1996and “nemo iudex in causa sua”."
In my judgment, the position concerning the provisions of Sections 11( 2)and 13(1) of the Act of 1996 is that not only does the Act give the power which is challenged, the unreported judgment in Ten -v- The Minister for Justice, Equality and Law Reform (the High Court 31 st October 2001) specifically deals with this issue in detail. The Applicant sought to rely on the case of Flanagan -v- University College Dublin [1988] IR 724 as authority on the maxim “nemo iudex in causa sua” as part of his argument. It should be noted that in that case of alleged plagiarism by an examination student whom it was decided should be sent down from college for a year, Barron J (inter alia) held that the breach of academic discipline alleged was criminal in nature, that the Applicant should have received in writing details of the precise charge being made and specifically that the Registrar, as prosecutor in the case, ought not to have remained with the committee while it deliberated the fate of the Applicant. The case now before the court is most emphatically not criminal in nature. Furthermore, the issue has been determined by O'Donovan J (when dealing with equivalent provisions under...
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